Chinese Criminal Procedure at its Worst

By Stanley Lubman, The Wall Street Journal

On July 23rd in Guizhou province, lawyers obtained a partial victory for some of the defendants accused of involvement in organized crime. Not all the accused were as fortunate, and the limited results came with the support of an intense Internet campaign to publicize gross violations of China’s Criminal Procedure Law by police and judges.

This case shows Chinese criminal procedure at its worst. It exposes extensive cooperation between police and court officials in violating Chinese procedural law to obtain convictions in a case brought during a nation-wide campaign with strong political overtones. At the same time, it also provides a glimpse of the work of dedicated lawyers defending their clients and how they have begun to use the Internet to publicize the problems they encounter. The case is reported in great detail in a blog post on Tea Leaf Nation that is well worth reading and is the source of the following account of the events in this case to date.

In March 2010, Li Qinghong, a real-estate businessman, was sentenced to 19 years in prison for alleged involvement in organized crime The case against Li and 16 others had begun in 2008 with a charge of gambling, but escalated in 2010 when a nation-wide “crackdown” campaign against organized crime was launched. In this case, the Guizhou Provincial Coordination Office to Fight Organized Crime organized a meeting to mobilize police, prosecutors and courts to cooperate closely.

The case was remanded by the Guizhou Provincial Court for “lack of factual clarity,” and the Guiyang City District Court reprosecuted the case this year and increased the number of defendants to 57. The defendants’ lawyers took to the Internet to appeal for additional legal assistance, and were ultimately joined by lawyers from outside Guiyang Province. According to the CCP-led Global Times, a total of 88 lawyers formed a panel for the defense.

The defense lawyers say they regarded the case as a test of the entire criminal defense system, because it involved illegally obtained evidence, false testimony and the complicity of police and the courts in these procedural violations. At the trial more than 10 defendants testified to having been tortured, the police were not allowed to testify, and the court refused to exclude evidence that allegedly had been obtained illegally, according to the Tea Leaf Nation account. In addition, during the proceedings the court expelled four lawyers for their aggressive arguments on procedural violations.

The account goes on to say that court officers promised the defendants who were represented by lawyers from outside of Guizhou that they would receive lenient sentences if they fired those lawyers, which some did — only to reveal three weeks later that they had released their lawyers solely because of great pressure on them. Some of those defendants then rehired their lawyers. After these events, one lawyer was quoted as saying “The criminal defense system in China is near its doomsday.”

The defense lawyers took their efforts to the public via the Internet in addition to vigorous arguments in court. They say that at issue was “the last defense, a life-or-death moment for the rule of law and for criminal defense.” They obtained only a partial victory: Although some defendants were found innocent, defendant Li Qinghong was sentenced to 15 years in prison. Li has appealed.

The defense lawyers ascribed their (partial) success to a massive use of microblogs, having posted more than 1,000 tweets, including extensive daily updates via Sina Weibo, during the 47-day trial. They emphasized that their use of social media filled a vacuum created by traditional media’s lack of attention to the case. They are quoted in the blog post as saying that these efforts, in addition to raising netizens’ awareness of the issues at stake in their case, “balanced the voice of the official media,” and helped to protect the lawyers’ personal safety.

A vivid illustration of the lawyers’ view of their battle is afforded by a brief YouTube video (with English subtitles) from Chinese TV of the lawyers’ struggle. One lawyer, who had traveled from Heilongjiang province to participate in the defense effort, argued that the judge was violating the law. The judge then ordered her ejected from the courtroom. She was later interviewed in the video speaking about the need to implement the law correctly. In the face of illegal activities by the local government, obstruction of defense lawyers, and judges who say, as one did, that they were acting as ordered by “a higher authority,” she said, “We need to get on the right track for a real legal system”

As long-time Chinese law specialist Professor Don Clarke has commented, there is “[P]lenty of grist for both optimists and pessimists.”

Viewed from afar, in criminal prosecutions like this one it could seem as if the organized power of the authoritarian Party-state, strong and entrenched, can overcome the capacity of the Internet to arouse citizens’ consciousness of gross illegality. It is likely that after the proceedings end, the impact of an Internet focus on an instance of injustice might fade from public view.

But with the appeal in this case pending, a further Internet offensive could dilute the strength of police and judges who are violating the law. This case could also inspire other lawyers to publicize injustices they encounter in the criminal process—and spur pressure from society for greater adherence to the rules and procedures of that process.